Getting a probation sentence is usually a positive outcome to a conviction. It is certainly better than jail time, so for many first offenders it can feel like a get-out-of-jail card. Unfortunately, depending on the conditions of the probation, not understanding the limits of the sentence or the consequences of a violation can bring on serious penalties.
A probationary period can last anywhere from 12 months for a misdemeanor to several years for a felony. In Indiana, one of a probation officer’s duties is to discover any violation of probation or criminal or delinquent activity by the probationer.
In practice, this means that they are often searching for a mistake that a probationer might make, and as a result, an overly zealous probation officer may make unjustified accusations. When faced with the possibility of increased fines or jail sentencing, it is important to know your rights and how to defend yourself against unjust allegations.
What constitutes a probation violation
A probation violation occurs when a probationer breaks the terms of their probation order. Some common violations include:
- leaving the state or jurisdiction where the order originated.
- failing to report for a meeting with the probation officer.
- failing to appear at a scheduled court date.
- failing to pay the required fines as a condition of probation.
- committing another crime or being arrested for an offense.
- possession, use, or traffic of drugs.
Depending on the severity of the reported violation, the probation officer may issue a warning or file an affidavit with the court, which may trigger a judge’s signature for a warrant for the probationer’s arrest. Whether the probationer actually violated their probation or not, the probationer will likely go to jail until a court date is scheduled, even if it was an unintentional violation.
Conditions for revoking probation in Indiana
Indiana laws stipulate the options the court may have once the probation officer has filed the affidavit. The judge may order a warrant for their arrest or issue a summons for the probationer to appear in court. Either way, the court will schedule a hearing to address the alleged violation.
At this point, the probationer may admit the violation or contest it. If they contest the allegations, the burden of proof of the violation lies on the state, based on a preponderance of the evidence. The probationer has the right to an attorney, as well as the right to their own defense, which may include cross-examination or confrontation of the probation officer. If they waive their rights to a hearing, however, they also give up this opportunity to defend themselves.
If the court finds that the individual has violated probation, it may sanction them by:
- continuing probation
- extending probation
- allowing a suspended sentence, including jail time, to commence
If the individual is found not guilty, however, they will still be on probation. When faced with the possibility of extended probation or enhanced penalties, strong legal advocacy can minimize these harsh measures, especially if the defense can effectively argue that the probation violation was not willful or substantial.